The position of stepchildren in inheritance law (part I)
Partly due the increased divorce rate, “composite families” are increasingly common, causing heirs and executors to deal with stepchildren and stepparents in arranging and dividing the inheritance. Stepchildren have a special position in inheritance law. It often happens that a father of one or more children finds a new partner after a divorce and remarries. That new partner may well have children of their own. In that case, those children are stepchildren of the (step)father.
If the stepfather decides not to make a will, or has not yet made one, the stepchildren will not inherit from their stepfather. After all, if no will is available, the legal inheritance applies. The law stipulates that only your spouse and your own children are heirs (and then other blood relatives according to a graded system).
“If you do not make a will, your stepchildren will not inherit from you as a stepparent.”
With a will
The stepfather can change this by making a will. He has a number of options.
The stepfather can “involve the stepchildren in the statutory division”. This puts the stepchildren on an equal footing with the stepfather’s own children. The statutory division means that the entire estate is transferred to the surviving spouse. The children – and this now includes the the stepchildren – each receive a claim against the surviving spouse in the amount of their inheritance, but this claim is only due upon the death of the surviving spouse.
Further, the stepfather can choose not to include the stepchildren in the statutory division, but simply to name them as heirs in his will. The stepchildren then have the same position as the stepfather’s own children and receive their inheritance directly. In principle, the inheritance is the same as that of the own children, unless the stepfather has determined otherwise in his will.
Finally, the stepfather can determine in his will that the stepchildren are entitled to a “bequest,” that is, he assigns the stepchildren specifically designated goods or a fixed sum of money.
A stepchild involved in the legal division in a will may also acquire special rights. For example, a stepchild who has received a claim against the surviving spouse, who is only due upon the death of that spouse, can obtain security for the payment (payment) of that claim. They can obtain this certainty by having the ownership of certain goods transferred to them in advance, while the spouse may only use those goods. The spouse then receives the usufruct of the property.
The position of stepchildren in inheritance law is special and complex. A will can contain the necessary deviations from the legal rules.
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Thijs Sarneel is specialised in family and inheritance law. Thijs provides an analytical approach with a strong sense of purpose, efficiency and strategy, which allows him to quickly identify the heart of your problem, then find a suitable solution.
Within family law Thijs negotiates and litigates on behalf of his clients, among those often entrepreneurs and expats (or their partners). Doing so the emphasis is regularly on complex settlements, the division of companies and real estate and financial issues. In inheritance law Thijs is involved in the division of estates and family businesses, frequently in an international context.
Because of his special interest in the art world, Thijs also regularly deals with matters in the field of art and law.